FMLA Paperwork

WOCO Frank

As long as we're on the subject...

I'm in a long-standing disagreement with our counsel. We currently use WH-1420 in our new-hire packets, and it's also posted on bulletin boards in every location. Our leave request form was developed by a different outside firm, and has proven to be excellent in every way. The problem is, our current counsel insists that we are asking for trouble by not using WH-381 as our leave request form. The problem I have, is that WH-381 is generally used in response to an employee's request for leave. We've never had an employee request leave... WE have always initiated it, to start the clock running on the 12 weeks. Our current form is very flexible in that way, and I'd like to keep using it. Realistically, though, when push comes to shove I'm not going to win against counsel. I'm also not ignoring the possibility that he may be right.

Now, after that lengthy introduction, my questions are:

Have any of you used WH-381 to initiate leave that is unwanted by the employee (if so, how did you approach it); and
Is the fact that WH-381 is an "official" government form a compelling reason to switch to it?

Robert Kaiser MO

I don't like the government form either, but it is presumptively lawful, so it is "safe" from a legal perspective. However, the regs contemplate that you can come up with your own form as long as it meets the requirements of the law. I do not know what your present form looks like, so I can not compare it to the WH-381, and can offer no opinion as to whether it does otherwise meet the legal requirements. Maybe your counsel can explain, other than formating, how your form may be deficient, and you can change it accordingly. If they can not identify a deficiency, I would be curious to hear their rationale for not using it. You are right in initiating the leave in the sense that rarely do employees actually come forward with paperwork before their leave starts, nor should employees be given a choice as to whether the leave is FMLA or not. You can also use the WH-381 even when the employee does not "seek" leave. You are merely treating the receipt of info about the employee's need for leave as a request for leave. In the end the question is narrowed down to "what is a request" and you would just be adopting, for your own protection, a broad response to the question. Hope this helps. Bob